Allstate Ins. Co. v Cajo, 2012 NY Slip Op 50292(U)(Civ. Ct. Queens Co. 2012)
“Plaintiff’s right to commence this action did not accrue until September 9, 2011 and post-dated the filing of a notice of trial by the plaintiff.However, the defendants did not move to dismiss the action as untimely. Instead, the defendants have moved to strike the action from the calendar pending completion of discovery, specifically, a physical examination of plaintiff’s subrogor, Milagros Lopez. Although the plaintiff’s right to commence this action has now accrued, it would be unjust to permit the plaintiff to benefit from the premature commencement of the action. Therefore, the notice of trial will be vacated and the action stricken from the trial calendar.
The defendants dispute the cause and extent of the physical injuries for which the no fault benefits and uninsured benefits, sought to be recovered in this action, were paid to plaintiff’s subrogor and have served a demand for a physical examination of Milagros Lopez. The benefits paid to plaintiff’s subrogor were substantial and at her deposition she testified that she still has some pain from her injuries. Therefore, the plaintiff is required to produce Milagros Lopez for a physical examination by the physician designated by the defendants (see CPLR §3121[a]; NYCCA § 208.13).”
So, the Plaintiff subrogee needs to prove that the subrogor (1) sustained a serious physical injury (UM benefit recovery); and (2) the medical services were medically necessary, in order to obtain a recovery in this case.
Surprisingly, there is not a lot of case on the issue involving no-fault and UM (SUM) subrogation.
2 Responses
This case also deals with the situation wherein a no-fault insurer is suing a non-covered party for recovery of no-fault benefits. Under Section 5104(b) if an insurer brings a action for recvoery of no-fault benefits against a non-covered party it must wait two years after the date of the loss to commence an action. In this case, the insurer did not wait two years and the court struck the notice of trial from the calendar. Since the defendant in this case is a non-covered party, any recovery is based upon common law liability. I do not think medical necessity is the issue since we are dealing with a non-covered party defendant.
Nice post shared by you . Really , one can easily know about no fault law . Thanks for adding such a post and share your views about no fault law .